Headquarters, San Antonio Air Logistics Center, Kelly Air Force, Texas (Activity) and American Federation of Government Employees, Local 1617, AFL-CIO, San Antonio, Texas (Union)

 6 FLRA No. 54
 
 HEADQUARTERS, SAN ANTONIO
 AIR LOGISTICS CENTER, KELLY
 AIR FORCE BASE, TEXAS
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1617, AFL-CIO
 SAN ANTONIO, TEXAS
 Union
 
                                            Case No. O-AR-96
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR CHARLES R. MILENTZ FILED BY THE UNION UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR THE DISPUTE IN THIS MATTER AROSE OVER THE
 SURVIVAL OF SPECIFIC PROVISIONS OF A 1975 MEMORANDUM OF AGREEMENT
 BETWEEN THE PARTIES WHICH PROVIDED COVERAGE TO ALL EMPLOYEES IN THE
 SECURITY POLICE OPERATIONS BRANCH AT KELLY AIR FORCE BASE, TEXAS.
 PURSUANT TO THE MASTER LABOR AGREEMENT ENTERED INTO BETWEEN THE AIR
 FORCE LOGISTICS COMMAND AND THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES FOLLOWING A UNIT CONSOLIDATION IN 1978, LOCAL AGREEMENTS SUCH
 AS THE MEMORANDUM OF AGREEMENT INVOLVED HEREIN WERE TO BE REVIEWED AT
 EACH AFLC ACTIVITY TO DETERMINE WHICH SECTIONS OF SUCH AGREEMENTS
 SURVIVED AS SUPPLEMENTS TO THE MASTER AGREEMENT.  IT WAS DURING SUCH
 REVIEW THAT THE DISPUTE HEREIN AROSE AND WAS ULTIMATELY SUBMITTED TO
 ARBITRATION.
 
    THE ISSUE AGREED UPON BY THE PARTIES AS STATED BY THE ARBITRATOR WAS:
 
    WHETHER ARTICLES X AND XXV OF THE POLICE UNIT MEMORANDUM OF AGREEMENT
 SURVIVED AS
 
    SUPPLEMENTS TO THE MASTER LABOR AGREEMENT BETWEEN THE AIR FORCE
 LOGISTICS COMMAND (AFLC) AND
 
    THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE).
 
    IN DETERMINING WHETHER THE PROVISIONS IN QUESTION SURVIVED, THE
 ARBITRATOR LOOKED AT THE PROVISIONS OF ANOTHER LOCALLY NEGOTIATED
 AGREEMENT, A 1977 MULTIUNIT CONTRACT, STATED THAT THIS MULTIUNIT
 CONTRACT HAD SUPERSEDED THE 1975 MEMORANDUM OF AGREEMENT, AND FOUND
 THAT
 "THE (SECURITY POLICE OPERATIONS) UNIT, ALONG WITH OTHER UNITS AT KELLY
 AFB THAT HAD INDIVIDUAL LABOR AGREEMENTS, ARE NOT INCLUDED IN ONE GS-WG
 MULTIUNIT CONTRACT. . . . " IN MAKING THIS FINDING THE ARBITRATOR
 REFERRED TO ARTICLE II OF THE MULTIUNIT CONTRACT WHICH PROVIDES IN
 RELEVANT PART:
 
    SECTION 2.  THE EMPLOYER HEREBY RECOGNIZES THE UNION UNDER THE
 PROVISIONS OF EXECUTIVE
 
    ORDER 11491, AS AMENDED, AS THE EXCLUSIVE REPRESENTATIVE FOR ALL
 EMPLOYEES IN THE WG AND GS
 
    UNITS AS DEFINED BELOW.
 
    A.  THE WAGE GRADE UNIT DEFINITION IS:  ALL EMPLOYEES IN THE WAGE
 GRADE CLASSIFICATION,
 
    KELLY AIR FORCE BASE, TEXAS, SERVICED BY THE SAN ANTONIO ALC
 (FORMERLY SAAMA) CIVILIAN
 
    PERSONNEL OFFICE EXCEPT THOSE EMPLOYEES SPECIFICALLY EXCLUDED IN
 SECTION 10B OF EXECUTIVE
 
    ORDER 11491 (AS AMENDED) AND THOSE EMPLOYED IN EXISTING UNITS OF
 EXCLUSIVE RECOGNITION:
 
    (1) SECURITY POLICE OPERATIONS BRANCH (AFGE LOCAL 1617)
 
    (2) FIRE PROTECTION BRANCH (IAFF LOCAL F-89)
 
    (3) MILITARY FOOD SERVICE BRANCH (AFGE LOCAL 1617)
 
    (4) BASE RESTAURANT BRANCH (IAM & AW LOCAL 1025)
 
    (5) NURSES (AFGE LOCAL 1617)
 
    B.  THE GENERAL SCHEDULE DEFINITION IS:  ALL NONSUPERVISORY,
 NONPROFESSIONAL CLASSIFICATION
 
    ACT EMPLOYEES SERVICED BY THE SAN ANTONIO ALC (FORMERLY SAAMA)
 CIVILIAN PERSONNEL OFFICE AND
 
    EMPLOYED WITHIN THE COMMUTING AREA OF KELLY AIR FORCE BASE.
 EXCLUDED:  ALL SUPERVISORS AND
 
    MANAGEMENT OFFICIALS, ALL PROFESSIONAL EMPLOYEES, ALL GUARDS, ALL
 EMPLOYEES ENGAGED IN
 
    CIVILIAN PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AS
 DEFINED IN SECTION 10B OF
 
    EXECUTIVE ORDER 11491 (AS AMENDED) AND ALL EMPLOYEES INCLUDED IN
 EXISTING UNITS OF EXCLUSIVE
 
    RECOGNITION WHICH ARE SECURITY POLICE, FIREFIGHTERS, NURSES, BASE
 RESTAURANTS, AND MILITARY
 
    FOOD SERVICE EMPLOYEES.  (GS AND WG UNIT EMPLOYEES ON STATESIDE AND
 OVERSEAS TDY WILL ALSO BE
 
    COVERED BY THE MULTIUNIT CONTRACT.)
 
    THIS AGREEMENT IS APPLICABLE ONLY TO EMPLOYEES IN THE ABOVE DESCRIBED
 UNITS OF
 
    RECOGNITION.  THE AGREEMENT IS A MULTIUNIT AGREEMENT.
 
    SETTING FORTH AND REFERRING SPECIFICALLY TO THE FIVE LISTED UNITS IN
 SECTION 2.A AS "UNITS INCLUDED" IN THE MULTIUNIT CONTRACT, /1/ THE
 ARBITRATOR CONCLUDED THAT SINCE THE SECURITY POLICE OPERATIONS BRANCH
 WAS "INCLUDED" UNDER THE 1977 MULTIUNIT CONTRACT, ARTICLES X AND XXV OF
 THE 1975 MEMORANDUM OF AGREEMENT "DID NOT SURVIVE AS A SUPPLEMENT TO THE
 MASTER LABOR AGREEMENT." ACCORDINGLY, IN PART "2" OF HIS AWARD THE
 ARBITRATOR DENIED THE GRIEVANCE.  /2/
 
    THE UNION FILED AN EXCEPTION TO PART "2" OF THE ARBITRATOR'S AWARD
 UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE /3/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
 CFR PART 2425.  THE ACTIVITY DID NOT FILE AN OPPOSITION.
 
    IN ITS EXCEPTION THE UNION CONTENDS THAT THE AWARD IS BASED ON A
 NONFACT.  THE UNION ARGUES THAT THE ARBITRATOR MADE "A GROSS MISTAKE OF
 FACT" WHEN HE REFERRED TO AND CITED ARTICLE II OF THE MULTIUNIT CONTRACT
 AS STATING THAT THE SECURITY POLICE OPERATIONS UNIT WAS INCLUDED IN ITS
 COVERAGE.  RATHER, THE UNION ASSERTS, ARTICLE II OF THE MULTIUNIT
 CONTRACT "CLEARLY AND SPECIFICALLY" EXCLUDES THE SECURITY POLICE
 OPERATIONS UNIT FROM COVERAGE.  THE UNION CONTENDS THAT THIS FINDING IS
 THE CENTRAL FACT UPON WHICH THE ARBITRATOR BASED HIS AWARD DENYING THE
 GRIEVANCE AND THAT HE THEREFORE NEVER REACHED THE ISSUE BEFORE HIM OF
 WHETHER CERTAIN PROVISIONS IN THE MEMORANDUM OF AGREEMENT SURVIVED.
 
    THE AUTHORITY AGREES.  UNDER SECTION 7122(A)(2) OF THE STATUTE, THE
 AUTHORITY WILL FIND AN ARBITRATION AWARD DEFICIENT WHEN IT IS
 DEMONSTRATED THAT THE CENTRAL FACT UNDERLYING THE AWARD IS CONCEDEDLY
 ERRONEOUS AND IN EFFECT IS A GROSS MISTAKE OF FACT BUT FOR WHICH A
 DIFFERENT RESULT WOULD HAVE BEEN REACHED.  UNITED STATES ARMY MISSILE
 MATERIAL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO.  60(1980);
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 987 AND
 WARNER ROBINS AIR LOGISTICS CENTER, ROBINS AIR FORCE BASE, GEORGIA, 3
 FLRA NO. 89(1980).  IN THIS CASE THE ARBITRATOR, IN DENYING THE
 GRIEVANCE, STATED THAT "THE POLICE MEMORANDUM OF AGREEMENT . . . IS
 SUPERSEDED BY THE GS-WG MULTIUNIT CONTRACT WHICH RECOGNIZES THE SECURITY
 POLICE OPERATIONS OF AFGE, LOCAL 1617, AS ONE OF THE UNITS IN THIS
 MULTIUNIT CONTRACT." HOWEVER, ON ITS FACE THE MULTIUNIT CONTRACT CLEARLY
 AND UNEQUIVOCALLY EXCLUDES THE SECURITY POLICE OPERATIONS UNIT FROM ITS
 COVERAGE.  IT IS EQUALLY CLEAR FROM THE ARBITRATOR'S AWARD THAT THE
 ARBITRATOR'S ERROR IN THIS REGARD WAS THE CENTRAL FACT UPON WHICH HE
 BASED HIS DENIAL OF THE GRIEVANCE AND THAT HE THEREFORE NEVER COMPARED
 THE DISPUTED SECTIONS OF THE MEMORANDUM OF AGREEMENT WITH THE MASTER
 AGREEMENT TO REACH THE ACTUAL ISSUE PRESENTED BY THE PARTIES OF WHETHER
 CERTAIN SPECIFIED PROVISIONS IN THE FORMER SURVIVED THE LATTER.  /4/
 
    FOR THESE REASONS, THE AUTHORITY FINDS THAT THE CENTRAL FACT
 UNDERLYING PART "2" OF THE ARBITRATOR'S AWARD IN THIS CASE IS CONCEDEDLY
 ERRONEOUS, AND IN EFFECT IS A GROSS MISTAKE OF FACT BUT FOR WHICH A
 DIFFERENT RESULT WOULD HAVE BEEN REACHED AND THAT THEREFORE PART "2"
 MUST BE SET ASIDE.  THE AUTHORITY'S DECISION IN THIS REGARD IS LIMITED
 TO THE FACT THAT THE ARBITRATOR BASED HIS AWARD ON HIS REFERENCE TO
 ARTICLE II OF THE MULTIUNIT AGREEMENT AS INCLUDING CERTAIN UNITS WHICH
 WERE CLEARLY EXCLUDED UNDER THAT ARTICLE.  IN SO DECIDING, THE AUTHORITY
 IN NO MANNER IMPLIES THAT, IF THE PARTIES CHOOSE TO RESUBMIT THIS MATTER
 TO ARBITRATION, THERE MIGHT NOT BE SOME OTHER RATIONALE UPON WHICH AN
 ARBITRATOR MIGHT FIND THAT THE MEMORANDUM OF AGREEMENT HAD BEEN SOMEHOW
 SUPERSEDED OR OTHERWISE EXPIRED.
 
    ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
 2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, PART "2" OF THE
 ARBITRATOR'S AWARD IS HEREBY SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., JULY 20, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ ARBITRATOR'S AWARD AT 3 N. 4.
 
    /2/ PART "1" OF THE ARBITRATOR'S AWARD DEALT WITH THE TIMELINESS OF
 THE APPEAL TO ARBITRATION AND IS NOT AT ISSUE IN THIS CASE.
 
    /3/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
 ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
 SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW THE AUTHORITY FINDS THAT
 THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;
 
    OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
 APPLICABLE LAWS, RULES, OR REGULATIONS.
 
    /4/ WHILE THE ARBITRATOR ALSO REFERRED IN THE OPINION ACCOMPANYING
 HIS AWARD TO THE EXPIRATION OF THE MEMORANDUM OF AGREEMENT IN FEBRUARY
 1978, THE CONTEXT OF THIS STATEMENT IS UNCLEAR IN LIGHT OF THE
 ARBITRATOR'S SPECIFIC FINDING THAT THE MEMORANDUM OF AGREEMENT WAS
 SUPERSEDED BY THE 1977 MULTIUNIT CONTRACT.  AS TO THE MEMORANDUM OF
 AGREEMENT'S "EXPIRATION," THE UNION POINTS OUT THAT SINCE THE SECURITY
 POLICE OPERATIONS UNIT WAS EXCLUDED FROM THE MULTIUNIT CONTRACT, THE
 MEMORANDUM OF AGREEMENT COVERING THAT UNIT WOULD NOT HAVE EXPIRED BUT
 WOULD HAVE REMAINED IN EXISTENCE PURSUANT TO SECTION 202.2 (H)(8) OF THE
 REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS IN
 EFFECT AT THE TIME OF THE CONSOLIDATION OF THE AFLC-WIDE UNIT IN JANUARY
 1978.